Ratabane v Department of Home Affairs and Another (2017/48021) [2018] ZAGPJHC 5 (29 January 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2017/48021

Not reportable

Of interest to other judges

Revised.

29 January 2018

In the matter between:

RATABANE, MMAKOMA SHERON Applicant And THE DEPARTMENT OF HOME AFFAIRS MATIBIDI, MARGARETE MMAMOTI First Respondent Second Respondent

JUDGMENT

SPILG, J:

INTRODUCTION

1. Ms Mmakoma Ratabane seeks an order condoning the late registration of a customary marriage she alleges was entered into on 7 April 2012 between herself and the late Mr Marisane Lazarus Matibidi and authorising the Department of Home Affairs (“the department”) to register and issue a marriage certificate in their names.

2. Mr Matibidi passed away on 28 July 2016 and will be referred to, as per the application, as the deceased

3. The only party cited other that the department is Margarete Matibidi who is alleged to be the deceased’s sister.

4. The applicant relies on a number of affidavits and documents to confirm the customary union.

5. The matter is unopposed and the issue is whether satisfactory evidence has been placed before me.

THE EVIDENCE PRESENTED

6. The applicant avers that she met the deceased in September 2007 and immediately formed a romantic relationship which lasted “from 2007 to about 2016, date and time when the deceased met his untimely death.” (emphasis added)

7. She goes on to aver that she met the deceased when both she and the deceased were studying at the same school.

If regard is had to the deceased’s identity document he was born in April 1970 and would have been 37 at the time they met at the school. The applicant would have been 20 years old at the time- her date of birth is in July 1987.

8. Nothing is said about what they were studying. However she avers that at some stage she moved in with him to his flat in Bree Street Johannesburg.

9. The applicant then deals with the circumstances surrounding her customary union. She avers that on 22 December 2011 and on 7 April 2012 the deceased showed his clear intentions of marriage by inviting his entire family to commence and finalise lobola negotiations.

10. She avers that on 7 April 2012 lobola negotiations were concluded when the deceased sent his sister, the second respondent, to hand over R15 000 as the full and final payment of her lobola and ”to plead with my family to allow me to move from my family to stay with my in-laws.

11. The applicant then avers that since 8 April 2012 she and the deceased have lived together as husband and wife at his residence in Bree Street.

12. In support of the allegations the applicant attaches three letters confirming the successful negotiations. Unfortunately none have been translated.

13. The first letter is dated 22 December 2011 and appears to bear the signatures of Mogoboya Frans Matibidi, although there is an overwrite of “Mogoboya”, and of Marisane Lazarus Matibidi.

The stamp of the headman of Mothlatlarenge village, SS Seroto, is appended and bears that date.

The second letter is dated 7 April 2012 and appears to identify those who represented the families. The second respondent is not mentioned but a Mr Tladi Maebana is identified as representing the groom. Eliya Modiba and Yvonne Ratabane are mentioned as representing the bride. The letter also bears the headman’s stamp and is dated 7 April 2012.

The third letter is dated 10 April 2012 and bears the stamp of paramount Chief SA Thulare. The handwritten date inserted in the space provided on the stamp is 10 April 2012.

14. As further proof the applicant attaches affidavits by Mr Eliya Modiba, Ms Yvonne Ratabane both of whom live in Tzaneen and of Mr Tladi Maebane of Diphagame village in Marishana.

15. Mr Modiba confirms in an affidavit deposed to on 10 April 2017 that he was present and participated in the traditional marriage ceremony between the applicant and the deceased which took place at Mothlatlarenge village.

He states that he was one of the members of the applicant’s family and that he represented her at the ceremony as appears from the lobola agreement. The lobola agreement is not attached to the affidavit. I however assume that it is the document dated 7 April 2012 which identifies Mr Modiba as a family representative.

Ms Ratabane’s affidavit is to the same effect.

16. Mr Mabane’s affidavit confirms that he attended the ceremony as a witness on the groom’s side.

17. All three supporting affidavits confirm that there was a ceremony and that lobola was paid.

18. The second respondent also resides at the Bree Street address. There is no return of service on her. However her signature purports to be on both the notice of motion and notice of set down.

CONCERNS

19. At face value there are affidavits presented from both the bride and groom confirming the consummation of the traditional marriage.

20. However there was a case recently before me also emanating from the Tzaneen area where a preceding wife by traditional marriage and her family had not been informed of the subsequent marriage.

The present papers do not indicate if the deceased had any other wives, whether the applicant attended the deceased’s funeral (bearing in mind that in her affidavit the applicant states that their relationship lasted to “to about 2016” and why the deceased’s parents and the applicant’s own parents have not deposed to an affidavit regarding the

consummation of the traditional marriage. I should add that the second respondent is not named in any of the documents as being

present at the ceremony. Perhaps they have all passed away, but then the applicant must produce evidence.

I am also uncomfortable with lack of service through the sheriff on the second respondent.

21. Cases of this nature are concerned both with the rights to dignity of a widow to be acknowledged and also with the devolution of the estate of the deceased.

This therefore may concern the rights of others and the applicant’s papers should indicate whether, to her knowledge, the deceased had consummated any previous civil law or any other traditional marriage and whether he had any children.

22. But her knowledge may not suffice. In the previous case I mentioned the woman, who had both a civil law and a traditional marriage claimed to be unaware of her late husband’s previous marriage, which was also by civil and traditional law.

It is for this reason that the applicant should disclose if she has knowledge of the deceased’s parents, if they are alive, all his siblings, and any other wives or any children. This must be dealt with as each has a potential interest in disputing whether she concluded a traditional marriage as there may be proprietary consequences that arise from granting the order sought.

23. The matter is to be postponed sine die in order to enable the applicant to provide the further evidence required.

______________

SPILG J

DATE OF HEARING AND ORDER: 23 January 2018

DATE OF REASONS:

29 January 2018

FOR APPLICANT:

Adv L Mhlangu

Ezenwa Attorneys